Analysis of Wednesday’s Oral Argument before U.S. Supreme Court in Pottawattamie County v. McGhee. This case presents a claim for Absolute Immunity for Prosecutors who falsified evidence and withheld exculpatory evidence which resulted in conviction and 25 years of imprisonment of innocent man

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Supreme Court appears split on tackling rogue prosecutors

The Supreme Court Wednesday heard arguments in a lawsuit brought by two Iowa men who spent 25 yrs in prison after prosecutors allegedly fabricated evidence against them. Justices seemed divided on the issue of how much immunity prosecutors should enjoy.

Washington – The US Supreme Court on Wednesday took up the difficult issue of what to do about unscrupulous prosecutors willing to induce false testimony and hide exculpatory evidence to convict innocent defendants.

At issue in Pottawattamie County v. McGhee is whether two men sent to prison for life are entitled to sue the local prosecutors in Iowa who helped arrange false testimony that led to their wrongful convictions.

Both men served 25 years in prison before being released after investigators discovered the false testimony and uncovered exculpatory evidence never disclosed to defense lawyers.

The high court has long recognized that prosecutors presenting a case at trial enjoy absolute immunity from citizen lawsuits seeking compensation for alleged violations of their constitutional rights.

But the court has also recognized that a prosecutor may not enjoy the protections of absolute immunity when serving not as a trial advocate but as an investigator searching for clues and corroboration that a crime has been committed.

During oral argument on Wednesday, the justices split into three camps. In one camp were Justices Ruth Bader Ginsburg, John Paul Stevens, and Sonia Sotomayor, who appeared primarily concerned with ensuring that victims of such prosecutorial misconduct have a potential remedy through a civil lawsuit.

In another camp were Chief Justice John Roberts and Justice Samuel Alito who appeared primarily concerned with the potentially “chilling impact” on all prosecutors if the court allowed some defendants to file such citizen lawsuits.

In the center were Justices Anthony Kennedy, Stephen Breyer, and Antonin Scalia who appeared to share the concerns of both other camps.

Deputy Solicitor General Neal Katyal, arguing in support of absolute immunity for the two prosecutors, said the government’s position was based on important societal concerns that prosecutors feel free to act as vigorous advocates.

“Absolute immunity doesn’t exist to protect a few bad apples,” Mr. Katyal said. If prosecutors know they may be sued by disgruntled defendants “they will flinch in the performance of their duties.”

Paul Clement, a former solicitor general arguing on behalf of the two wrongly-convicted defendants, said the federal appeals court in New York has allowed such citizen lawsuits against prosecutors since 2000. “There has not been a flood of these cases,” he said. “There has been a trickle.”

Mr. Clement said he had identified 17 cases brought since the 2000 appeals court action.

Chief Justice Roberts said his concerns went beyond just potential litigation. “We are concerned about the chilling effect on the prosecutors,” he said.

Stephen Sanders, a Chicago lawyer representing the two former prosecutors, urged the court to maintain an expansive application of absolute immunity for all prosecutors.

He warned that if the high court ruled for the two wrongly-convicted defendants, “it would work a radical change in the law of immunity.”

The following questions and selected answers is excerpted from the oral arguments:

JUSTICE KENNEDY: So the — so the law is the more deeply you’re involved in the wrong, the more likely you are to be immune? That’s a strange proposition.

JUSTICE GINSBURG: But it’s strange to say you can have a prosecutor, who wasn’t involved in the trial, would have liability, but as long as the prosecutor, in effect, turns the investigatory stage material over to himself, rather than to another prosecutor, then there’s absolute immunity.

JUSTICE SOTOMAYOR: But that makes no sense because, if you go down that road, then what you’re saying is that neither the — neither a police officer or a different prosecutor who fabricated evidence could be liable, either, because the only person who causes the deprivation is the prosecutor who uses the false evidence at trial.

JUSTICE BREYER: Why do we need that theory? I mean, why not just say what Newman said and the others said? There is no free-standing right. There is just a right not to convict a person with made-up evidence, and of course a prosecutor insofar as he’s involved in the prosecutorial stage is absolutely immune. But if he’s involved in the investigatorial stage of that event, well, then he’s not immune absolutely. That’s a policy decision. That has nothing to do with free-standing rights.

JUSTICE SOTOMAYOR: Am I right that none of the — neither of the two prosecutors in this case were sanctioned in any way for their conduct?

MR. KATYAL: I believe that is correct, and I also believe that no ethics complaints were ever brought. That is, rather the Respondents went into Federal court seeking money damages instead of ethics violations and the like.

JUSTICE SOTOMAYOR: But you have no reason to dispute the numerous studies we were provided that show that as a matter of routine prosecutors are not sanctioned for improper prosecutorial conduct in the investigatory stage, are you?

JUSTICE STEVENS: I just don’t see the — I don’t to see if I can understand the reason why the time in which the violation is completed, namely after the trial, goes to the question of whether there is liability for pretrial conduct.

JUSTICE ALITO: When the issue, when the -the claim is based on the evaluation of the truthfulness of a witness who eventually testifies at trial, where’s the line to be drawn between the investigative stage and the prosecutorial stage?

JUSTICE ALITO: What concerns me about your argument is the — is a real fear that it will eviscerate Imbler. Now, maybe you can convince me that it will not have that effect, but as the Solicitor General argued at the end of his argument, a very — in the typical criminal case, the witnesses are not John Q. Public with — who have never engaged in any wrongful activity.

A typical witness is — well, let’s take the case of the prosecution of a — a white — of the CEO of a huge corporation for insider trading or some other white-collar violation. And the chief witness against this person is, let’s say, the CFO of this company, who when initially questioned by law enforcement officials and investigatory officials, made — made statements denying any participation in any wrongdoing, but eventually changed his story and testifies against the CEO at trial in exchange for consideration in a plea deal.

Now, your argument, in a case like that -or you could change the facts, make it an organized crime case, make it a prosecution of a drug kingpin who’s testifying — the witness against him is a lower-ranking person in the organization who has a criminal record, maybe has previously committed perjury, has made numerous false statements, is subject to impeachment. In all of those cases a claim could be brought against the prosecutor.

CHIEF JUSTICE ROBERTS: Well, but it’s also you don’t really know, right? In other words, we’re concerned about the chilling effect on the prosecutors. We don’t know what the impact of the Second Circuit’s decision has been on the prosecutors.

JUSTICE SCALIA: The difference here is that the — the absolutely immune act which follows the -the unlawful act is — is an absolutely immune act by the very actor who performed the earlier act that -that you say induces liability. And so the argument is, what’s the use of giving him liability later on if — if you can simply drag him into litigation by — by alleging that he at an earlier stage committed a violation?

JUSTICE SCALIA: That’s the difference. I mean, to me that’s the — the crux of this, that it is the same actor who has absolute liability whom you’re trying to get on the basis of — of earlier action.

CHIEF JUSTICE ROBERTS: If you cannot rely on anything that goes on at the trial to establish the due process violation, what do you rely on to establish the violation?

CHIEF JUSTICE ROBERTS: Well, let’s say that you — let’s say that you can’t because we read Imbler as conferring absolute immunity on what goes on at the trial. And if you can’t advert to that, you don’t have a constitutional violation, right?

MR. CLEMENT: Well, I think it makes all the difference in the world in the sense that if — if they know that everything they do at trial is going to be protected, those functions, which is the basis of this Court’s functional approach to absolute immunity, are going to be protected. Now, if they’re going to be -

JUSTICE SCALIA: But it won’t be protected. They won’t have that assurance, because when they -when they produce evidence at trial, oh, yeah, I guess the production at trial will be protected, but you’re -you’re telling us that they can go back and say, ah, but you got that evidence in a bad manner, and therefore we can sue you, not for introducing it at trial, but for fabricating it before trial.

I — I don’t see that there is much of a difference as far as the deterrent effect upon the prosecutor is concerned.

JUSTICE BREYER: There’s a different tendency, which I would say this is a slight fluke, what you’re describing. I’m more worried about what Justice Alito brought up, that, other things being equal, I think it’s probably a good thing to get prosecutors involved in the questioning process. That — that has a kind of check on the police.

And the concern I’d have is that the –this will discourage the prosecutors from becoming involved in the witness — witness questioning process, at least not before the police are well on the way. And that is a very negative incentive, I would think.

So what is your most pro-prosecutorial rule that you could live with that will in fact minimize the risk of that kind of disincentive? Now, are you just going to say, well, Buckley?

JUSTICE BREYER: Or is there something — I mean, I can see Buckley with the, you know, probable cause. It turns on and off as you’re talking to the witness. First what he says, you have the probable cause; then you don’t; then you do; then you don’t. I mean, I — I’m not — I just want you to give your best thought to this problem and tell me what is the most safe rule that will allow you to win your case?

JUSTICE KENNEDY: Well, could you answer Justice Breyer’s question, which I — I think raises a — a critical point in terms of Justice Alito’s examples of talking to the witness. Why isn’t that at some point — I think in Buckley, the “judicial phase.” Why is this the judicial phase?

JUSTICE KENNEDY: No, but probable cause doesn’t work because you have — you have probable cause once you fabricate the evidence.

JUSTICE KENNEDY: Suppose the prosecutor isn’t sure there’s probable cause and he calls — calls in the accountant, the CFO, and really doesn’t begin to believe his story, so he starts probing and finally he gets the CFO to change his story with the plea — plea bargain. Would that be part of the judicial process? Or is that still clearly investigatory?

JUSTICE BREYER: Well, also, you’re making me more worried because I think, if 85 percent of all the defendants — or 90 percent plead guilty, it might be a highly desirable thing to get prosecutors involved in the truth-discovering process, I mean, so that they don’t just see themselves as the job of — well, we’re going to take somebody, put them in jail. Maybe — maybe that’s a reason for pushing it back a little bit, this — this line.

MR. CLEMENT: I just wanted to say the incentive would really be perverse. Under Burns, if the police — if the police officer comes to the prosecutor and says — you know, we want to fabricate evidence to frame it, can we do it? And the prosecutor says, yes, you can do that, go ahead; there’s qualified immunity.

Now, if the prosecutor says, go ahead and let me help, there would somehow be absolute immunity. I mean, that is really an anomalous result, that it’s the n anomaly that caused this Court in Buckley to draw the line at probable cause.

CHIEF JUSTICE ROBERTS: I was going to suggest in response to your point that — you know, qualified immunity is really significant. Of course, it is, but we’ve recognized, in a number of contexts, in the judicial area, for example, that it’s — it’s not enough.

We have also recognized that in the prosecutorial area, and trying to draw the line where you do — I think this was one of the points Justice Alito was making, is that, sometimes, you’re investigating and preparing your case at the same time.

You don’t just sit back and say, I’m — I’m

just going to look and see what I can find. You have particular areas. The prosecution requires you to show four things, So you are looking at those four things. You are preparing your case, and you’re investigating

JUSTICE ALITO: In — in answer to Justice Breyer’s question, would — would it be a — would it be practical and conceptually correct to draw the line at the stage at which the prosecutor is interviewing witnesses to evaluate credibility?

So, at that stage, the prosecutorial function has begun and absolute immunity would kick in.

JUSTICE ALITO: Not on whether there is probable cause because probable cause is — is evanescent. It comes, and it goes. It is — it is -it is inextricably intertwined with what the prosecutor is doing in questioning the witness.

CHIEF JUSTICE ROBERTS: Well, your approach, then, encourages prosecutors to be trigger happy. They’re prosecuting right now because they know, then, that everything else, they have absolute immunity, so -you know, shoot first and ask questions later.

JUSTICE SCALIA: What — what does that prove? What does that prove? I don’t understand why you bring that up because it shows that the fact that there aren’t many cases, only 17 in the — in the Second Circuit, it doesn’t mean anything because the Second Circuit is not applying as liberal a rule as your opponent suggests.

Is that -

JUSTICE SCALIA: Yes. That’s — that’s just what I said, and, therefore — and had it been applied that way, there would have been more than 17 cases in the Second Circuit.

JUSTICE GINSBURG: Is anyone in this picture liable? The defendants have been incarcerated for some time, but when it blows up, they’re let out. No trial, but everything else, the same.

JUSTICE GINSBURG: You said — I think your position is that due process begins when trial is underway, and before that due process doesn’t enter the picture?

The issue fell before the Supreme Court on Tuesday, in a case called Pottawattamie County v. McGhee. The case involves two former Pottawattamie County, Iowa, prosecutors being sued by Curtis W. McGhee Jr., and Terry Harrington, both of whom were convicted of first-degree murder and sentenced to life in prison in 1978 for the death of retired police officer John Schweer.

The men were released from prison after 25 years, after the Iowa Supreme Court found that the prosecution had failed to disclose exculpatory evidence to the defense. In the 1963 case Brady v. Maryland the court held that prosecutors violate a defendant’s due-process rights when they suppress material evidence that could lead to an acquittal or a lesser sentence. Specifically, McGhee and Harrington allege that prosecutors framed them by concealing evidence that pointed to another suspect and inducing a teenage witness to fabricate testimony. That witness and others later recanted their testimony.

McGhee and Harrington both brought civil rights actions against the county. A federal district judge rejected the prosecutors’ claim that they held absolute immunity from liability. The Eighth Circuit affirmed, and the case ultimately went up to the Supremes.

Click here for the AP writeup on the arguments; here for Tony Mauro’s take at the National Law Journal; here for the Eighth Circuit opinion.

The plaintiffs were arguing that the county, through its prosecutors and officials, had violated their 14th Amendment due process rights. Section 1983 of the Civil Rights Act of 1871 allows individuals to bring constitutional claims against state officials.

And the defendants argued?

Immunity. In the 1993 case Buckley v. Fitzsimmons, the Supreme Court held that a prosecutor is immune from liability for acts that he or she took after launching a prosecution — that is, after he or she established probable cause. The defendants in this case are arguing that, based on the Buckley ruling, there was no due process violation before the trial, and therefore that they’re immune from liability and the case should be dismissed.

The question, of course, is why draw the line here. And that’s what seemed to animate the justices today — the policy implications of reaching one conclusion or another. Today, it seemed clear that the conservatives and liberals found different policy implications persuasive.

How so?

The liberals — and here’s the spoiler: along with Justice Kennedy — were troubled by the practical effect of the county’s theory. Under it, a police officer who fabricated evidence could be liable, as could a prosecutor who did so and then handed it off to a colleague to introduce in court. But a prosecutor who fabricated the evidence herself and then introduced it at trial would be immune.

Justice Kennedy put it this way: “So the law is: The more deeply you’re involved in the wrong, the more likely you are to be immune? That’s a strange proposition.”

Justice Sotomayor, herself a former assistant district attorney, was even more direct. “That makes no sense,” she said.

But the more conservative justices seemed to see it differently?

They did. Justice Alito, a former U.S. attorney, worried about opening the door to claims that would inhibit prosecutors from going after criminals. Both he and Chief Justice Roberts said there could be a “chilling effect” on zealous law enforcement if defendants could sue their prosecutors.

Justice Breyer shared the concerns of the other liberals, but he tried to balance them against law enforcement interests. “What is your most pro-prosecutorial rule that you could live with that will in fact minimize the risk?” he asked Paul Clement, representing the ex-prisoners.

Interesting. Any early guesses as to how the court might ultimately vote?

Let me recite the boilerplate disclaimer that the justices’ questions at argument do not necessarily predict future votes. That said, if it were lawful to wager on Supreme Court cases the odds might favor a classic 4-4 liberal-conservative split, with Justice Kennedy handing the tie to the ex-prisoners. The opinion will permit this lawsuit to proceed but be written narrowly to ensure that lower courts deny immunity only in the most egregious cases of prosecutorial misconduct. Chief Justice Roberts and Justice Alito seemed sure to dissent.

Justice Scalia is known as a law and order guy, but Clement — a former Scalia clerk — made a strong play for his old boss by arguing that prosecutorial immunity is a judge-made rule with no basis in either common law or statutory text. Scalia often says he bases his opinions on the original meaning of the legal text, so that argument might appeal. But Scalia also says he sometimes accepts precedents he might not have approved in the first place, under the doctrine of stare decisis.

Justice Thomas said nothing, as is his custom. He’s also a strong law and order judge, but he too says he relies on original meaning to decide cases, and considers precedent even less important than Scalia does.